The transcripts of the official inquiry into the culture, practices and ethics of the press. More…

  • Mr Rusbridger, that sounds like a target in itself.

    I'm conscious and have been conscious from the various presentations that you've made, both the seminars and the speeches you've given, that this is a topic which has obviously exercised your mind for some considerable time, and therefore I would very much welcome not merely a restatement of the problems, which I am starting to get to grip with, but also some help with solutions that work for everybody. Nobody need convince me that the vast majority, the overwhelming majority of journalism practised in this country is very much in the public interest and has the public interest very much at its heart. But I think you're right, as indeed everybody else has realised, that there is a distance now to go which we can't ignore, and which we ignore at our peril.

    So let me just ask you a few questions about what you've said, and if you can't answer them now, that's fair enough, I just want them to be thought about.

    When Mr Jay opened the case, he spoke about these two narratives, the positive and the negative, and I've heard not surprising concern expressed by some of the core participants about anonymous evidence and I understand that, and from a background of the criminal law where anonymity has caused enormous problems, I recognise the issues that are thrown up, but how am I going to get to the bottom of the culture which is hinted at, which is spoken of this morning, unless people are prepared to say it? And how am I going to help those that are concerned about the potential impact that that will have upon them, and their livelihood, which is a not at all ignoble concern, to try and expose what needs to be exposed so that we can get an idea of the corners of the problem?

    So that's the first series of questions that I have.

    The second is the slightly different picture that some of the media representatives portray to the picture presented by others. It's encapsulated in the concern that was expressed at a very early stage about lack of tabloid experience, and by tabloid I mean red top rather than including in that description the size of the paper upon which the newspaper is printed. That's not what I'm talking about, as everybody understands.

    Nobody has suggested that the ethics of those that are mass market newspapers should be different to those which are rather more targeted, and that seems to me to be right, but there is no doubt, it seems to me, that concepts of privacy about which you spoke are differently perceived by different titles, and I need to know how to address that. I need to know how I should be thinking about the concept of privacy, and to what extent obviously those who have been affected by issues of privacy will have extremely strong views, and where the balance is. I think that's a struggle.

    You mention what safeguards can be built into news organisations so that journalists can exercise moral choices. That echoed something that Ms Stanistreet said about the conscience clause, but is it appropriate for me to be requiring that? Is that a way forward? I'm very concerned about the extent to which the law ought to be prescribing any of these things, not least because that itself impacts on the freedom that I have no doubt is critical to the exercise of journalistic responsibilities.

    Then you talk about oversight and governance, which I've already mentioned. If there is to be a public benefit test as I believe there should be, then it obviously has to be subjective if the journalist and the editor has to believe it, but secondly, is there place for some objective criteria and a demonstration of oversight that establishes that it has been thought about?

    It will come particularly to the fore where stories don't actually prove themselves. You could take a story such as the cricketing revelations recently and say, well, that demonstrates, and indeed it does demonstrate, the power of investigative journalism, where there was a real public interest. But one has to be able to make that decision before one knows the result of the test. In other words, you have to have some mechanism to decide this line which is going to involve blagging and steps which might otherwise be a legitimate subject of complaints, is overridden by public interest, even if in the end you don't get the lollipop because nothing comes of it, and yet it then comes out. That's another issue and that's an issue which has to be tested at various stages.

    The problem about pre-publication authorisation, just to raise a concept -- and I'm afraid you are now getting a whole series of questions which is really, of course, addressed to everybody and come out of everything that everybody's said, but because you're the last core participant, you're going to get it from me -- is how one is going to test some sort of authority. I mean, I know there's been a very real concern, and indeed Mr Mosley has pursued through to Europe issues of notification, but on what basis would that decision be made? Would it be made on the basis of the story that the press wants to put in the public domain or would it require some detailed examination of the facts to see whether that story is justified?

    I'm not answering these questions, I'm merely asking them.

    Let me just carry on to the next point.

    I think there is a great deal of scope in finding some mechanism that allows for the resolution of disputes between members of the public and the press short of the courts, because it's become so expensive or so dependent upon conditional fees that it isn't available to many. I would like to investigate the idea of having some sort of service that does that, that ties into the law and that runs parallel, because I'm not going to be one that cuts anybody out from coming to law, but I do feel that everybody could benefit from some mechanism -- at least I think I feel; I'm only beginning and none of these views are formed, they're merely thoughts -- as to how one can set something up that is for the benefit of everybody.

    You mention a carrot and a stick, but how am I going to persuade those that don't even subscribe to the PCC that it's a sensible approach? And how am I going to involve that other great media outlet now, the Internet, to buy in?

    You pick up the point about teeth, and my concern about the binary issue, and I'm sure that the approach -- no, I can't say I'm sure. I feel it's likely that the approach is going to require something rather more nuanced than one or the other, but how can that work in a way that doesn't -- and if I say this once a day, I hope people will believe me -- doesn't impact on the freedom of the press and the freedom of expression, both of which I believe are absolutely fundamental to our society, and I will carry on saying it because that is absolutely my view.

    Then you mentioned the competition. The word plurality came into my terms of reference quite late in the day and raised monumental problems, but how is one to do that? And even if we are where we are, how is one to take that forward in a way that respects independence and takes the decision-making into an area that is cognisant of those problems?

    So they're just a stream of consciousness, really, based upon things that you've said but also that I've heard this morning and heard over the last few days. I don't ask you to answer this examination paper immediately, but if there's anything that you do want to add, because some of those I might have asked as questions while you were speaking, you're very welcome to do so. Otherwise, everybody can take on board what I have said and think about the ways in which we can address them in the weeks that are to come.

    I want this Inquiry to mean something. I am, and I repeat, very concerned that it should not simply form a footnote in some professor of journalism's analysis of the history of the 21st century while it gathers dust. This is an opportunity for your industry, your profession, and I'm very keen that it's used as profitably by everybody so that the vast expense that all are incurring is not wasted.

    That was a speech I didn't expect to make and wasn't planning, but I hope that it's of value.

    If there's anything you want to add to what I've said, I would be very grateful.

  • Thank you for responding so creatively to what I said, and if I just give you some brief reactions to what you've said to me and then we can consult and respond more fully.

    On the point of anonymous evidence, I think that is clearly a difficult one. The reason that Nick Davies and the New York Times and later Panorama and Dispatches, ie journalists were able to get at this story in a way that the police and the PCC weren't was because they spoke to journalists off the record. So when the New York Times turned up in town, we said to them, "If you find and speak to enough people on the News of the World, they will tell you the same thing that they told Nick Davies", which was that this stuff was going on, that it was known about, it was rife and it was ingrained in the paper.

    The New York Times managed to get two journalists to speak on the record, and the third police inquiry immediately announced they would interview these witnesses as suspects under caution, and of course that got nowhere.

    So there was a contrast between the people who were trying to get public evidence and didn't get to the truth, and the people who took off the record evidence and did get to the truth.

  • That makes an assumption, actually, but I take the point.

  • No, I understand the point.

  • I think it's inevitable, and I hear what the General Secretary of the NUJ said about the fear of people -- I mean, there are two factors that are going to be at the back of people's mind. One is the retribution factor, which Michelle Stanistreet talked about, which is you're going to be unemployable if you say bad things about the industry in front of this committee, and the other obviously is that if people were frank the police are going to come along and arrest them.

    So those are two difficult factors which you're going to have to think about and I know you've given a lot of thought to already. And we can think further.

    On the tabloids versus the broadsheets and privacy, it's true that there is a divide between different types of newspapers, and broadly and crudely, the so-called broadsheets have been more interested in the law of libel and the development of the so-called Reynolds principles, and the tabloids are broadly less interested in libel, use that less and are more threatened by privacy issues.

    When asked by the House of Commons and the joint committee looking into privacy, my answer has always been that we haven't yet been -- we get the injunctions that everyone else gets about privacy, but no one has yet tried to stop the Guardian from writing about anything on the basis of privacy, and when I gave evidence with John Witherow, the editor of the Sunday Times, before the joint committee the other day, he said more or less the same. He said he thought the balance at the moment was about right.

    But there are different business models involved and I think the only way it's going to work is for the industry to come together around a public interest defence that they agree to and are prepared to defend.

    It's been quite striking to me that in the rash of privacy injunction cases in the courts earlier this year, if you do an analysis of them, and there's a handy analysis sitting on the Guardian law site, in most cases the newspapers don't argue that it was in the public interest as defined by the code, so I think we have to have a public interest defence that we believe in and are prepared to argue and if we're not prepared to argue then that tells you something --

  • And it must recognise -- I'm sorry, I'm now interrupting, but it must recognise, mustn't it, that different newspapers have different audiences who are interested in different things?

  • That is true, and I take on board all the things that my colleagues say about the fact that the commercial model of some newspapers is built on an entirely different kind of content, but it's a slippery road if you go down that argument too much because it ends up at the News of the World. Unless you have universal principles around which we agree, and this is the business of how we lash ourselves together in industry, about things in which -- where we come from different starting points, it has to be around a common idea of what the public good and public interest is. And we must mean that. Including arguing it in court.

    On the conscience clause, again off the top of my head, I would have thought there would be things that would help this tribunal in the provisions of whistle-blowing, so lots of companies do have whistle-blowing clauses built into their governance, and --

  • There's now legislation for it.

  • Quite. So there must be something there, but I'm not a lawyer and that's something on which I shall take further legal advice.

    On the public benefit test, I think it is similar to the Reynolds test, which, as broadsheets, we're quite used to dealing with now, so the best investigative reporters on the Guardian know that they have to answer -- they may be asked these questions if they want to avail themselves of the Reynolds defence. It's about who the source is, what's the motive of the source, what's the quality of the information, have you put the information to the people you're writing about in advance, have you given them time to respond, have you included their response?

    You're familiar with the Nicholls test. Although I think as an industry we would say that Reynolds didn't work particularly well when it was tested in the courts until the Jameel judgment in the House of Lords, nevertheless at the Guardian we have been able to publish a lot of stories that we wouldn't have been able to publish in the past because the lawyers on the other side kind of know the process that's been gone through and they recognise that they're not going to be able to get a case up and running.

    So I think that Reynolds is working quite well, and you can take some of that into this privacy thing and that's where the Omand rules are quite interesting, because if you can say yes, we did consider the harm, the good, the proportionality, it was authorised, and no, this wasn't a fishing expedition, which goes to your point about things that may have public interest at the end that didn't look at though they would at the beginning or vice versa --

  • -- if you can show your working -- now, I know some of my colleagues and the legal team would be anxious if that became the kind of official audit, but nevertheless I think it's inevitable that any form of regulation is going to say: who knew about this in advance? What questions were asked? Were any notes taken? And I think if newsrooms in the way that they handle Reynolds began to handle these issues in the same way --

  • I'm not suggesting something that PricewaterhouseCoopers could come and read. I'm actually suggesting something rather less sophisticated than that, to demonstrate that there is a system.

  • That actually these things were thought about and not just after the event, but in anticipation.

  • Yes, and I think these are reasonable questions for a regulator to ask.

  • I seem to be doing it all at the moment, but at least thinking about it.

  • Yes.

    Notification I think is complex because it meshes in with lots of other different bits of media law which engage prior restraint. So if you have a confidential document which perhaps you shouldn't have, or you want to put it to the subject in advance for libel reasons, you run the risk that they will get an injunction under confidence and the story will never appear.

  • I understand the problem, and that's an issue that has to be addressed, and I have some very, very quarter-formed ideas, but I'm keen to get ideas from everybody, actually, to see ways in which this could work. I mean, we're only Day 3, and we're going to get to Day 100 and something, I would have thought, so there's plenty of time, but the purpose of the openings is just to put all these things out there.

  • Yes. Is this helpful for me to just respond --

  • Disputes resolution and the carrots and sticks. I mean, what we've been thinking -- obviously under Article 6, anybody can go to law who wants to. I think that a mediator in a pretty cost-free way could, at an early stage, look at meaning, could explore the degree to which the facts contested could decide on the facts, could deal with the prominence of an apology and the wording of an apology. All these things that can take months at huge expense to do through the courts could be done by a mediator.

    If a mediator kept notes of all that, so there was a record of that discussion, so that if the mediation fell apart you could then show that to a judge, if it went on to trial, and the judge could then recognise whether the newspaper had made a genuine attempt to reach resolution, that could be reflected in the costs or the damages or it could be regarded as a complete defence. Ie if a newspaper had early on put their hands up, confessed their error and said, "We will correct this prominently and pay the damages" and that had been rejected by the claimant, as has happened to us on occasion, I think the judge could then say, "Actually, I think that is a defence". So it's something like the offer of amends or a Part 36 offer.

  • You'd have to have the mediator to have the ability to assess damages up to perhaps a certain level.

  • I don't see why not, yes. And I'm not a lawyer, so the degree to which the primary legislation would have to be involved in order to embed that -- which sort of takes us onto the next issue because this is the statutory versus non-statutory bit. The statutory bit that says in setting up this independent regulator we need to tweak bits of law in order to give force to these things, in order to dovetail aspects of law, we don't have a problem with, as long as the regulation itself doesn't sniff of statutory regulation.

  • Yes, well, I think in the speech the Lord Chief Justice made, he observed models whereby the government isn't appointing anybody, but is setting out regimes whereby independent people are appointed, who then appoint, and one of the examples he gave was the Judicial Appointments Commission.

  • Anyway, these are all things for the future. Mr Rusbridger, thank you very much indeed. That's probably a convenient moment to have a break so that the fingers of the shorthand writer can cool down. We'll come back at about 11.30. Thank you.

  • (A short break)

  • Before Mr Sherborne starts, two things.

    First of all, although I addressed a series of questions to Mr Rusbridger, they should be treated as questions to everybody. I'm sure they will be.

    Right, Mr Sherborne, I haven't had anything in writing at all from you. I have from everybody else. Should I have got?

  • It will cover topics which, although touched upon in the oral submissions I'm about to make to you, are largely or fleshed out, I would say, in the written submissions. Part of the purpose of the oral submissions are of course to open the evidence that you'll hear from my clients.

  • But I will provide the Inquiry with written submissions before the evidence starts on Monday next week. It concerns, as you'll appreciate, legal issues as opposed to evidential ones.